Monday, November 24, 2008

Confidential or not?

Anyone in the consulting business has probably seen their fair share of Confidentiality Agreements, sometimes known as Non-Disclosure Agreements or NDAs. And all those newer to the consulting game quickly discover that such agreements rarely protect your interests as much as they protect the client's. After all, the client is usually a larger concern and has a legal department which draws up these agreements.However, there are a few steps a small firm or solo practitioner can take to add some safeguards. One of these is to avoid signing such agreements until you are fairly certain there is work on the table. Don't make the mistake of Cindy, a consultant who was desperate for work. She signed a fairly onerous agreement with clients who said they had a rush project. Cindy couriered the document back to the supposed clients -and then waited. And waited, And waited. So much for the "rush" work! Trouble is, Cindy was now bound by restrictions preventing her from working for other companies in the same industry as the vanished client. Waiting until there's firm work on the table means you won't be locked out of more tangible opportunities.Even when there is billable work to be done, you still need to exercise some caution. Always check to see that there are some protections for any work product you deliver to your clients. For example, how well does the NDA bar your client from showing your report to your competitors? If you have developed some proprietary formats for delivery or have some techniques that are unique to your firm, you will want to safeguard these. Otherwise, you will find your work being brandished about town to your detriment. This occurred to David when there was a change in personnel at his client company; the person who had contracted for David' services left and the new appointee didn't think anything of showing David's report to potential new suppliers. This was especially troubling because the report, in the newcomer's view, was unsatisfactory, and he made no bones about saying so to all those firms called in to pitch for new business.If you want to avoid having competitors pinch your best ideas or just want to avoid some embarrassment, it may be time to look at adding a few clauses to any NDAs you're asked to sign. Either on your own or with the help of an attorney, if you have one, draw up one or two well-worded and concise clauses which can be added your client NDAs. (Words from the wise: don't let the attorney get carried away. It's unlikely the client will agree to sign a document you produce. Keep it simple: 2 or 3 short clauses at most and it's more likely that the client will accommodate the request.)Prior to your client actually forwarding the documents, raise the issue and ask to speak to someone directly in the legal department. If you explain you are only adding clauses to protect your deliverables and methodologies, and that you won't alter the bulk of the document, your client or their legal department is more likely to agree.And the more you build your firm and your track record, the more you'll have to protect. Take steps to make sure all parties keep it confidential!